Media Trial: A Tussle Between Freedom Of Speech And Fair Trial


Media trial is not a new concept either in India or across the globe. The media which is the fourth estate of Indian democracy is often seen at the loggerhead with the Judiciary over trial of the cases by the media which are pending before the courts. Whether it be Jessica Lal murder case or Nirbhaya gang-rape case, Indian media always have the tendency to prejudge the issue. The media houses quiet frequently use seductive slogans that depicts the guilt of the arrested persons even in cases where the trial does not even begin in the court.  The media trial has once again come under the scanner in the celebrated actor Sushant Singh Rajput suicide case and Amaravati Land Scam case wherein the Honourable High Court of Andhra Pradesh issued gag orders issuing an injunction against any media reporting of the FIR and its contents. The present article traces how the honourable courts have tried to strike a balance between the two fundamental rights i.e.  The Freedom of speech and fair trial.


Trial by media basically means the impact of television and newspaper coverage on a person’s reputation by creating a widespread creation of guilt or innocence before, or after, a verdict in a court of law.

The Constitution of India under Article 19(1)(a) provides the right to “freedom of speech and expression” to all the citizens, the media also primarily derives its right to publication from this right.

The reasoning supporting reporting of judicial cases by media was observed by Lord Chief Justice Hewart  in the case of   R v Sussex Justices1 where he observed: “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Through this observation, the honourable judge braced the transparency in the justice delivery system.

In contrastingly, the Constitution of India under Article 14 and Article 21 provides right to fair trial which is also recognised as a human right, but at times this right falls prey to trial by media.

Highlighting the importance of a  fair trial the Honourable court in the case of Anukul Chandra Pradhan v. Union of India 2 observed  “ Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending. In that event, it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under Article 21 of the Constitution.”

By this observation the honourable court made a remark about the presumption of innocence in the criminal trial, without setting out any specific test or principle that should be followed while dealing with the media trial matter.

Then came the leading case where the honourable supreme court supported the idea of pre-publication censorship in the case of Sahara India Real Estate Corpn. Ltd. v. SEBI3, A leading case where the right to publication of media was fettered.

In this case the honourable court formulated “twin tests of necessity and proportionality to be applied in cases where there is real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial. “

The honourable court advocated the idea of issuing orders prohibiting publication for a  temporary period during the course of trial under the inherent powers of the court under Article 129 and Article 215 of the Indian Constitution whenever the court is satisfied that interest of justice so requires.

The honourable court through the above observation has unambiguously stated that freedom of media cannot be allowed to abridge the right to fair trial where there arises the tussle between the two the latter will be upheld. However, at the same time, the honourable court has observed that such restriction cannot be imposed arbitrarily and the publisher has a right to be represented before the court.

In a democracy Right to fair trial cannot be compromised to satisfy the curiosity of the viewing public. This right to fair trial has to be kept at a higher pedestal and should not be put at stake to achieve other objectives except educating the public and making the judiciary accountable The Delhi high court highlighted this point in the case of Naveen Jindal vs Zee media4 where it observed that “Every effort should be made by the print and electronic media to ensure that the distinction between trial by media and informative media should always be maintained. Trial by media should be avoided particularly, at a stage when the suspect is entitled to the constitutional protections. Invasion of his rights is bound to be held as impermissible.”

It is worthy to note that It is not only the accused who gets distressed or agitated by these media trials but at times  the judges also have to bear the brunt as Supreme Court Judge Kurian Joseph said citing Nirbhaya gang rape case

 “If I had not given that punishment they would have hung me, the media had already given their verdict, (like) it is going to be this only,”5

The above statement made by the honourable judge depicts the public pressure they have while deciding the high profile cases or cases in which the entire nation is eyeing.

In a democratic country, people have the right to know, that’s where media role comes into picture. By informing the public of the courts’ decisions and by scrutinising the functioning of the judicial branch of government, the media fosters public confidence in the legal system,  media freedom should be strongly upheld when the media is carrying out its proper function in a democracy when it is not doing so, and particularly when it is attacking the basic freedoms of others, courts should not hesitate to rein it. The media should refrain from taking judicial function in their own hands. Interviewing the witnesses and accused on a national television may prejudice the fair trial.


From the above reading it is pellucid that the courts have leaned in favour of fair trial over freedom of expression when two are at the loggerhead, the former right has wood over the latter.  The media although has a right to report court proceeding but it must not divorce from the principle of “innocent until proven guilty” which is the basic presumption and bedrock of every criminal proceeding. The exigency is to strengthen the News broadcasting Authority (NBA)  and widen its jurisdiction to even those media channels who are not its members, although it may not provide an instant solution to the menace but can dispraise such practice. A greater responsibility lies on media that every effort should be made to ensure that the distinction between trial by media and informative media be manifestly maintained.


This article has been written by Hitesh, student at Faculty of Law, University Of Delhi.

Also Read – Difference Between Hearing And Trial

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